In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 31 July 2012

Perpetual moral rights are a strange thing
not only to the minds of common lawyers, but to those of German jurists as
well. German monist copyright treats economic and moral rights as two inseparable
sides of the same coin, which among other things means that copyright cannot be
assigned, although exclusive licences concerning the economic rights are
possible.

The French do things differently and
provide for perpetual rights of divulgation, attribution and integrity
(Articles L.121-1 and L-121-2 Code de la propriété intellectuelle – CPI). When
it comes to the right of divulgation, Article L. 121-2 CPI states that after
the author’s death, this right is exercised by the executors of the author’s
will. If the author did not appoint any executors or once they are deceased, and subject to the author’s will to the contrary,
the right is exercised by the author’s descendants, spouse, or any other
heirs or legatees.

Not only do I spot potential for an orphan
works problem here, but I also wonder what happens if the author made it clear
that she did not wish for her work to be published ever. Does "the author’s
will to the contrary" only refer to the person who shall exercise or not
exercise the right, or does it also mean that the author may bind future right
holders to her decision never to have the work published at all?

If the former is true, it seems to me that
the right holders actually receive a perpetual economic right as well, albeit a one-off one, as they may demand
payment in exchange for their permission to publish. If the latter is true, who
makes sure that the right holders adhere to that wish? How come, for instance,
that Kafka’s posthumously published works are available in France even though
he expressly asked for them to be destroyed?

Richard Hooper has today published his final report on the creation of a UK based Digital Copyright Exchange. The report, Copyright Works: streamlining copyright licensing for the digital age can be downloaded here and sets out four main recommendations under the remit of setting up a not for profit industry led and industry funded Copyright Hub which will serve a number of functions including

* Information and copyright education* Registries of rights* A market place for rights - licensing solutions* Help with the orphan works problem

The accompanying press release gives a little bit more detail saying that the Copyright Hub will have five main purposes, to:

Richard Hooper

- act as a signpost and be a navigation mechanism to
the complex world of copyright

- be the place to go for copyright education

- be the place where any copyright owner can choose
to register works, the associated rights to those works, permitted uses and
licences granted

- be the place for potential licensees to go for easy
to use, transparent, low transaction cost copyright licensing

- be one of the authoritative places where
prospective users of orphan works can go to demonstrate they have done proper,
reasonable and due diligence searches for the owners of those works before they
digitise them.

With Richard Hooper saying "Setting up an industry led and
industry-funded Copyright Hub will help maximise the potential for creators and
rights owners on the supply side and the wide range of licensees and users on
the demand side".

There are very positive and glowing comments from Business Secretary Vince Cable who said "The idea of a 'copyright hub' is an ambitious
undertaking and one that could clearly yield great benefits for the UK's
creative industries and consumers. It is potentially a ground-breaking step
forward that will help make copyright licensing fit for 21st century."

UK Music, and the UK's two music collection societies PRS for Music and PPL all made very positive noises and Nick Evans-Lombe, COO of Getty Images said: "We are impressed by the speed
and no-nonsense manner with which Richard Hooper and Ros Lynch have addressed
the key impediments to speedy innovation, across what are the hugely diverse,
inherently international, digital copyright markets. We welcome the way they
have dug deep into the underpinning principles of copyright licensing, without
losing sight of the critical importance of maintaining a strong copyright
regime, which is essential to enable the creative industries to continue to
flourish" and from Sarah Faulder, CEO of the Publishers’
Licensing Society who said: "Richard Hooper's phase two report Copyright
Works, sets out a focused and worthwhile vision of a multi-faceted copyright
hub to explain and streamline the process of copyright licensing.Making it easier to get appropriate copyright
licences will benefit both rights holders and those who want to build their
businesses on copyright content or otherwise be able to use copyright material
lawfully" adding "By recognising existing good practice,
stimulating new initiatives in the course of his work and identifying issues
that need urgent attention, Richard has encouraged the creative industries to
collaborate and he has motivated them to take forward his vision. The scale of
the task ahead in order to turn his vision into reality should not, however, be
underestimated."

All that said, I have to say I found it hard to get excited by the final Report - all of the main problems have been identified and Richard Hooper's approach seems to have been more than diligent, intelligent, inclusive and well thought out - and certainly anything that helps with licensing must be a positive move forward for the content industries in the fight against piracy. But, and its a big but, the Hub will not be 'compulsory' for content owners to join for low value high volume consumer facing schemes, which means that many digital users will just say it has failed, as they need a 'one stop shop' to become legitimate - and there seems to be no real carrot for content owners to be included. I wonder if some commercial operators will bother - although I should make it clear that I would not suggest that using the Hub should be compulsory and clearly Hooper knows that high value low volume licensing will be excluded (citing Universal's licence with Spotify as an example of something that would be outside of the Hub).

The carrot of some advantage of registering with the Hub might have helped this blogger make more sense of it - giving the Hub some extra legislative teeth that could be used against infringers for example, or some other advantage. Secondly (and again something that might attract the criticism that there is no 'one stop shop') the Hub is a UK initiative and is not global or even pan-European in its scope - although on the last point I would say "not as yet". PRS For Music's CEO Robert Ashcroft was one who mentioned the need for a "Global Repertoire Database" as a key building block in what "must inevitably be an international project", something the Report itself does acknowledge, noting the importance of data and noting the music industry's aspirations to have a global database for musical works, and for sound recordings, and recommending that the audio visual industry adopts standardised identifiers,. Hooper clearly realises the need for the Hub to include all content owners within and across media sectors against a backdrop of multi-media and borderless end users. As an aside, for a very interesting take on how to streamline music licensing (and collection societies) in Europe, see para 132.

Finally, there seems to be little onward Government support or involvement - it's left to the content industries to make Richard's "vision" a reality - and as I read it, they have to meet the cost. Maybe that's a positive move, far better than having a Hub imposed from above - but I wonder if really legislation might better give the Copyright Hub a spine and some claws (if they are needed).

Hooper proposes that the Report's co-author, Dr Ros Lynch, now leads a steering committee (the Copyright Licensing Steering Group) to put his proposals into action - and potentially form a cross sectoral and collaborative Copyright Hub Launch Group - I presume with some Government funding for that although Hooper seems to suggest that at least for a year the creative industries have agreed to fund the Licensing Group.

Monday, 30 July 2012

In a world where
copyright's constant struggle to keep pace with technology is discussed daily, the
more basic copyright issues are often overlooked. Since 2008, the World
Intellectual Property Office (WIPO) has been discussing passing a treaty to
give blind and visually impaired people easier access to published works. The
concept is simple: translation of a copyright protected work into braille* requires
the rightsholder's permission. However it seems fair to pass an exception that
would give blind and visually impaired people easier access to those works.
This blogger cannot find any estimate on what loss this would cause publishing
houses, however one imagines that it would not be significant.

Despite the fact
that most will easily agree on the merits of such an exception, progress so far
has been sluggish. Last week WIPO reached an agreement on a timeline for completing the treaty,
(or instrument). Whilst this blogger can't disagree that WIPO is moving in the
right direction, it seems to be doing so excruciatingly slowly. An inter-sessional
meeting is to be held between 9 October and 19 November 2012. Then an extraordinary
General Assembly to be held in December 2012 to decide whether the visually
impaired issue is ready to move to a diplomatic conference in 2013.

The latest draft of the exception, SCCR/24/9, includes brackets around large portions of
text that are yet to be agreed, and on top of that, WIPO still has not decided whether
the visually impaired negotiations are intended to produce a treaty,
recommendations or a declaration. Five years of negotiation for a declaration
with no binding effect?

James Love,
director of Knowledge Ecology
International, has alleged that the EU and the US are blocking the treaty to
protect their publishing industries, and that they have been pushing for softer
guidelines or recommendations. This blogger completely understand why translation of a book into braille
infringes copyright, in the same way that translation into any language infringes
copyright. However when you consider that 90% of the
world's blind and visually impaired people live in developing countries, where
governments have not been able to acquire express permission from copyright
holders to translate their works into braille, you have to wonder what loss the
proposed exception would really cause EU and US publishers.

Article 19: Everyone has the right to freedom
of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.

Article 27 (i): Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits.

Of course the
Declaration on Human Rights is not the answer to everything, and publishers and
rightsholders are equally justified in relying on Article 27(ii), however Articles
19 and 27(i) highlight the importance of access to information for all.

Dan Pescod of the Royal National Institute
of Blind People has said that the Spanish organisation Once has well over 100,000 [translated] books
that it would like to send to Latin American countries, but which it can't because
of copyright. He went on to say that libraries in five Latin American countries
– Colombia, Nicaragua, Mexico, Uruguay and Chile – have fewer than 9,000 accessible
books between them.

Copyright is a hot
political issue, with both the EU and US giving it unprecedented attention. It
is not surprising that this attention is directed where there is money to be
made or lost: new technology, satellite broadcasting, social media and piracy. However
it is disappointing that more progress was not made last week, particularly
given that such a fundamental exception could have a huge impact both on the
lives of individuals and on the development of economies in poorer countries.

Friday, 27 July 2012

After months of preparation, the Olympics
are finally upon us! This blogger is not in London but it seems that Olympic
fever is everywhere. Here are a couple of Olympic copyright stories to get us warmed up.

As many of you will know, the opening Olympics ceremony rehearsal took
place earlier this week. Despite the organisers' best efforts to keep the
ceremony secret, a video of the rehearsal managed to make its way on to YouTube.
It was removed yesterday "on copyright grounds". Thirty-second clips of the rehearsal were
however permitted to be shown on the BBC. Bet the Paris '24 Olympics did not suffer from such problems!

After the recent Al
Green copyright debacle one might have thought that Obama and Romney would
want to keep their campaigns free from copyright protected work however the US
Olympic Committee recently registered a copyright complaint in respect of an
advert released by Priorities USA, backing President Obama. The advert, which used
the Olympic "parade of nations" to mock Romney's reported overseas
investment accounts, was removed from YouTube and will not be aired on
television.

The International Olympic Committee agreed
with the decision, saying that "The IOC does not allow footage of the
Olympic Games or an association with the Olympic rings to be used for political
purposes, in line with the Olympic Charter."

You may be interested to know that Mitt
Romney is in the UK for the Olympics which he has said he thinks will be
"highly successful". Glad to have his approval!

And finally, its not really a copyright
point, but this blogger could not help reporting that Oddbins (a UK
off-licence) has launched a "marketing counter-strike" against the Olympic
branding restrictions imposed by the London Organising Committee of the Olympic
Games (LOCOG).

Apparently Oddbins
will reveal special window displays intended to ruffle LOCOG's feathers, and will reward
customers wearing or using Nike, Vauxhall, RBS MasterCard, Apple, British Gas,
Pepsi and KFC goods with 30% off Oddbins purchases.

Oddbins' managing director Ayo Akintola
has said that the company has taken steps to ensure that its planned window
displays do not flout any of the "asinine rules", but that it is
taking a stand to highlight "the absurdity of the fact that the British
people - who are paying for these games - are at the same time being subject to
ridiculous rules", adding that "even though our window designs will
be within the rules, we would not be surprised if LOCOG goes loco."

Courtesy of the Hollywood Reporter we have the most public and amusing 'exchange of opinions' yet between the new internet entrepreneurs and the content industry: In the blue Corner .... welcome Kim 'Dotcom' Schmitz, 38 year old boss of MegaUpload, currently on bail in New Zealand awaiting extradition to the USA and now an internet freeedom fighter ..... and in the Red Corner, Bruce 'Web$tarr' Leddy, Hollywood writer and director, and a man with eyes on Dotcom's millions. Here's their rather interesting exchange of letters:

Dear Hollywood

The Internet frightens you. But history has taught us that the greatest innovations were built on rejections. The VCR frightened you, but it ended up making billions of dollars in video sales.

You get so comfortable with your ways of doing business that any change is perceived as a threat. The problem is, we as a society don't have a choice: The law of human nature is to communicate more efficiently. And the economic benefits of high-speed Internet and unlimited cloud storage are so great that we need to plan for the day when the transfer of terabytes of data will be measured in seconds.

Businesses and individuals will keep looking for faster connectivity, more robust online storage and more privacy. Transferring large pieces of content over the Internet will become common -- not because global citizens are evil but because economic forces leading to "speed of light" data transfer and storage are so beneficial to societal growth.

Come on, guys, I am a computer nerd. I love Hollywood and movies. My whole life is like a movie.

I wouldn't be who I am if it wasn't for the mind-altering glimpse at the future in Star Wars. I am at the forefront of creating the cool stuff that will allow creative works to thrive in an Internet age. I have the solutions to your problems. I am not your enemy.

Providing "freemium" cloud storage to society is not a crime. What will Hollywood do when smartphones and tablets can wirelessly transfer a movie file within milliseconds?

The very powerful and the very stupid have one thing in common. Instead of changing their views to fit the facts, they try to change the facts to fit their views. The fact remains that the benefits of Megaupload to society outweigh the burdens. But instead of adapting, you imported one of your action-conspiracy movie scripts into the real world. In my view, MPAA CEO and former Sen. Chris Dodd lobbied his friends in the White House to turn me into a villain who has to be destroyed. Due process? Rule of law? Eliminate me and my innovation and worry about the consequences later. Never mind that millions of Megaupload users lost access to cloud data like their wedding photos. Well done, Hollywood, everyone with similar innovations got the message. But wait … You did not read the end of the script.

The people of the Internet will unite. They will help me. And they are stronger than you. We will prevail in the war for Internet freedom and innovation that you have launched. We have logic, human nature and the invisible hand on our side.

As you should have known, our Mega services operated within the boundaries of the law. We had users that spanned from the military to Hollywood to lawyers and doctors. If you are unhappy with that, it is up to you to convince Congress to amend legislation. You tried with SOPA and you failed. As an alternative, you chose to lobby the Justice Department to ignore the law and stage a global show of force and destruction. The only parties a New Zealand court has found to have violated the law in this case are the local police and the FBI.

Regardless of the issues you have with new technologies, you can't just engage armed forces halfway around the world, rip a peaceful man from his family, throw him in jail, terminate his business without a trial, take everything he owns without a hearing, deprive him of a fair chance to defend himself and do all that while your propaganda machine is destroying him in the media. Is that who you want to be?

There can still be a happy ending. I am working on solutions. Just call me or my lawyers. You know where to find me. Unfortunately I can only do lunch in New Zealand.

This open letter is free of copyright. Use it freely.

And in reply, Hollywood director Bruce Leddy, director on the ABC/TBS Cougar Town, penned this to the Hollywood Reporter. Bruce also wrote and directed the feature film The Wedding Weekend and wrote for madtv.

Hey, Kim!

I read your letter to Hollywood in The [Hollywood] Reporter, and I'm so happy you want to be friends! I mean, I'm just an average working "Hollywood" guy and I don't have any multimillionaire friends with mansions and Rolls-Royce Ghosts, so being buddies with you would make me soooo much cooler! All this stuff in the press about "who created what" and "who should make money off of whose hard work" is so boring, isn't it? Let's just agree to disagree! BFFs!

I am worried about your assets, though. While you're under house arrest, who's taking care of the mansion and all the sports cars that were purchased with the profits you made -- allegedly! -- from posting Hollywood movies and TV shows on the Internet? Rust can build up quickly on helicopters, so do be careful!

Hey, if you're not available for a while, would you mind if I borrowed one of your super-luxury cars? I mean, when you think about it, they kind of belong to all of us writers, producers, directors, cast and crew who work hard every day to make movies and TV shows but are clearly not as clever as you are about landing the big money by posting other people's products online. I've been working here for 20 years, but I still don't have even one Lamborghini! (I know, embarrassing, right?) It would really mean a lot to me and my family if I could drive around town in one of those bad boys.

Your story is so inspiring. To earn hundreds of millions of dollars without actually ever making anything is just so cutting-edge and futuristic! Hollywood is so "dark ages." In the future, everyone should be like Megaupload: free to profit from what anyone makes, writes, creates, designs or owns in whatever way they can. I say, if Hollywood is going to spend all this time and effort making these movies and TV shows, employing hundreds of thousands of hardworking Americans and union members and then letting a guy like you become a multimillionaire off its work, it's our own damn fault! Holy cow, are we dumb! LOL.

I'm reminded of this guy who found a whole lot of brand-name jeans in a poorly guarded warehouse and then resold them for cheap out of the back of a truck. So smart, right? He didn't have that annoying overhead of making the jeans or of building a store to sell them from. Pure profit, baby! Only bummer was, there aren't any countries where that isn't illegal, so now he's up the river. Boo, FBI!

Personally, I'm tired of being a chump and writing and directing stuff for a decent wage when I could just as easily "share" other people's stuff on the Internet and make huge money off it. So I've decided to start selling all your property on eBay, beginning with your pile of luxury cars. That Mercedes Brabus SV12 alone will easily pay for my kids' college tuitions. I mean, sure, they don't technically belong to me. But if I can find a country where they don't really have rules about that kind of thing yet, I'm going to be living large! Probably change my name to Bruce Web$tarr. Extra "r" for extra RICH! You like it?

And hey, you're right; your life is like a movie. In fact, pirate movies have made like a bazillion dollars recently, and I bet we can get Depp or Cruise or someone on board. Let me know when you're going to be free next, and we'll grab a bite to discuss. I hear New Zealand is lovely. -- Bruce Leddy (aka Bruce Web$tarr)

The mysteries of Google Image: a searchfor 'apik' + 'vapik' brought up theimage above in the first line of hits ...

Whatever setbacks copyright protection may face in the United States, much of Asia and most of Europe, it's comforting to note that things are looking a little rosier for the increasingly controversial right in Kosovo. According to information recently received,

"On July 12, the Copyright and Related Rights Office, operating under the Ministry of Culture, Youth and Sports in Pristina, Kosovo, gave licenses to the first two copyright collectives established in Kosovo.

The two collectives are the Association of Authors, Producers and Interpreters (APIK), responsible for the collective management of musical works, and the Audio Visual Association of Performers and Interpreters (VAPIK), responsible for the collective management of audiovisual works.

Memli Krasniqi, minister of culture, youth and sports, under whom the copyright office operates, handed the licenses to the representatives of the two associations, Florent Boshnjaku from APIK and Blerim Gjoci from VAPIK.

The new Law on Copyright and Related Rights entered into force in Kosovo in December 2011 and now the copyright office has taken an important step to ensure proper implementation of this law".

Based on the premise that “The internet is the greatest engine of economic growth the
World has ever known” a new US based trade group representing the interests of Internet companies called the Internet Association has been announced and will formally launch in September – headed up by Michael Beckerman as its inaugural president and CEO. Beckerman formerly served as House Energy and Commerce Committee deputy staff director and has a background in telecom and Internet policy. With Google, Facebook, Amazon and eBay as founding members, the group intends to be “the unified voice of the Internet economy, representing the interests of America’s leading Internet
companies and their global community of users” by taking advocacy positions on
public policy issues".

The Internet Association's stated goal is to “strengthen and protect an open,
innovative and free Internet." with Beckerman saying “The Internet isn’t just Silicon Valley anymore, the Internet has moved to Main Street. Our top priority is to ensure that elected leaders in Washington understand the profound impacts of the Internet and Internet companies on jobs, economic growth and freedom.”

So cynics might expect substantially more pressure on legislators both in the USA and elsewhere to maintain or even extend 'safe harbour' provisions, stop web blocking legislation and three strikes, and prevent anything along the same lines as the Anti-Counterfeiting Trade Agreement (ACTA), SOPA (the Stop Online Piracy Act) and the Protect IP Act (PIPA) ever developing.

Wednesday, 25 July 2012

Is it illegal to browse the
internet? As counterintuitive as it may seem the answer is that yes, sometimes
it is, even if you are browsing content which is entirely legal. Unsurprisingly
this is a hot topic, currently being considered both by the government and by the
courts, as well as by consumers.

Out-Law.com recently reported that James
Mackenzie, commercial director of the media monitoring agency Cutbot, publicly said that businesses and internet users could both suffer if the
government waits for the courts to interpret whether browsing and linking are
lawful acts. He said that "If Parliament fails to act, ministers risk
seeing the innocent browsing of the web criminalised and legitimate UK
businesses being stifled."

The debate stems from the NLA v Meltwater litigation which has
seen the High
Court and the Court of
Appeal consider whether headlines and extracts from
articles can be protected by copyright. Both courts found that they can,
however Meltwater and the Public Relations Consultants Association have
referred the question of whether temporary copies of the headlines or extracts,
made on users' computers (on their screens or their hard drives) when browsing
the internet constitute temporary copies for the purpose of s.28A CDPA or Art.
5 InfoSoc Directive.

In the meantime the NLA is
enforcing licences on both media monitoring organisations and their users. The
licence fees have been greatly reduced by the Copyright Tribunal (as reported here), but the licences remain unpopular, as
evidenced by Cutbot's blogpost "we object to the newspaper licensing agency's
terms", which you can read here.

Where work is made
available to the public at a particular web address with the permission of the
owner of the copyright in that work, copyright shall not be infringed by -

(a) any circulation of that
web address, or of its title, or of another web address that redirects to that
web address;

(b) the downloading of any
data required to display that work at that address, and any subsequent
processing of that data, including processing for display, provided that it
does not result in any publication elsewhere of the work or an adaptation of
the work.".

Labour MP Fiona O'Donnell
said that:

"It is evident that the law has not caught up with new media and the worldwide web, and the Government must respond."

She
went on to quote Professor Lionel Bently, of Cambridge University who has said
that

"There is something fundamentally wrong with a legal
regime which renders the innocent acts of many millions of citizens
illegal."

Business Minister Norman
Lamb has previously saidthat the copyright licensing system is behind the times,
and that it needs to be modernised to become fit for the 21st century. He does
not however support O'Donnell's argument, saying that links have been dealt with in the Meltwater case
and that it is necessary to await the outcome of the case.

The debate continued, with
MPs discussing amongst other things hypothetical extracts from the novel
"50 Shades of Grey", however the outcome was 11:6 against the
amendment.

Lamb said that:

"Ultimately, the
matter is for the courts to determine. As the law is evolving and practice is
evolving, as we use the internet more and more, to a degree, one has to wait
for judicial decisions on the basis of European law to determine whether any
particular act is lawful. Ultimately, they are decisions for the courts".

What do you think? Given
that the Meltwater case will not be heard by the Supreme Court until February
2013, should the government intervene or can we afford to wait for the court's
decision?

Disclaimer:
Baker & McKenzie, and this blogger, represent Meltwater and the Public
Relations Consultants Association.

The US Copyright Office has issued a policy explaining that Yoga positions and poses are not covered by S102 of the US Copyright Act as they are neither dramatic works nor choreographic works - and most certainly are not musical, artistic or literary works!

The policy explains "[W]hile such a functional system or process may be aesthetically appealing, it is nevertheless uncopyrightable subject matter. A film or description of such an exercise routine or simple dance routine may be copyrightable, as may a compilation of photographs of such movements. However, such a copyright will not extend to the movements themselves, either individually or in combination, but only to the expressive description, depiction, or illustration of the routine that falls within a section 102(a) category of authorship.

You can read the Copyright Office's full Statement of Policy here and here

Tuesday, 24 July 2012

In a previous posting (See here), I had referred to two ruling by the French Supreme Court (Cour de cassation) involving Google Video. In those rulings, the Cour de cassation overturned lower court decisions and held that online service providers such as Google are not, absent re-notification, required to take all measures to prevent the re-posting of infringing content that has already been the subject-matter of a takedown notice.

Another plea put forward by Google in these cases (which was rejected by the Court) related to the issue of liability for the act of public performance. Google argued that due to the way Google Video works (link provided by Google), the video at issue was not actually performed on its site but rather on the third-party site that hosted the content.

The Court rejects this argument:

"...the appellate court noted that Google companies allow the user, on the basis of links to other sites, to view the movie on their own Google Video France site, and [rightly] concluded that the Google companies implement an active functionality that allows them to appropriate the content stored on third-party sites in order to effect a direct performance on their on their pages for their own customers...". The Court further notes that in doing so Google goes beyond the provision of a mere technical functionality.

The issue of whether performance occurs in similar circumstances (embedded links) where the site does not actually host the content but is merely an intermediary is currently under consideration by the U.S. Seventh Circuit in the Flava Works case (see Flava Works).

Following on from Iona's last post, more on the same topic: Unlike New Zealand, the 'three strikes' provisions in the UK's Digital Economy Act are still some way off implementation (if ever?), which seems to have prompted a group of celebrities including Andrew Lloyd-Webber, Sir Elton John, Simon Cowell, The Who's Roger Daltrey and Pete Townshend, Queen's Brian May and Roger Taylor along with Robert Plant, Professor Green and Tinie Tempah to write an open letter calling on the UK government to bring the relevant DEA provisions into force and also to put more pressure on search engines and others to block unlicensed music sites getting traffic and earning advertising revenue.

On the latter point, I noted yesterday that a number of big UK ISPs including Virgin, Talk Talk and Sky have agreed to do more to block the rather notorious The Pirate Bay site, widening the scope of URLs and links they will block, notably to include newer IP addresses TPB has migrated too.

Back to the letter which says: "As the world's focus turns to the UK this summer, there is an opportunity to stimulate growth in sectors where the UK has a competitive edge. Our creative industries represent one such sector, which creates jobs at twice the speed of the rest of the economy. Britain's share of the global music market is higher than ever with UK artists, led by Adele, breaking through to global stardom" adding "As a digitally advanced nation whose language is spoken around the world, the UK is well positioned to increase its exports in the digital age. Competition in the creative sector is in talent and innovation, not labour costs or raw materials. We can realise this potential only if we have a strong domestic copyright framework, so that UK creative industries can earn a fair return on their huge investments creating original content. Illegal activity online must be pushed to the margins. This will benefit consumers, giving confidence they are buying safely online from legal websites" and "The simplest way to ensure this would be to implement the long-overdue measures in the Digital Economy Act 2010; and to ensure broadband providers, search engines and online advertisers play their part in protecting consumers and creators from illegal sites" (emphasis added).

Monday, 23 July 2012

Or should that be a 50% decrease in
detection of infringement? Recent stats from New Zealand's Federation
Against Copyright Theft (FACT) claim to show that since New Zealand's
"Skynet Act" three-strike law (previously reported on this blog here),
was implemented in September 2011, the number of illegally viewed films in the
top 200 online has dropped from 110,000 to 50,000, i.e. by just over 50%.
However, according to FACT, there has been no discernible progress since. These
submissions, made to the Economic Development Ministry were released under the
Official Information Act. As promising as a 50% decrease in infringement
sounds, this blogger can't help but wonder what it really means: are more Kiwis
simply flying under the radar?

How does the three-strike law work?

The three-strike law in New Zealand grants
rightsholders the power to request that internet service providers (ISPs) issue
up to three warning notices to consumers alleged to be illegally using
copyright protected content. Rightsholders are required to pay the ISPs a processing
fee of $25 to issue a notice. After the third notice, users face a claim before
the New Zealand Copyright Tribunal, which can issue fines of up to $15,000 (approximately
GBP 7,500 or USD 12,000).

The law is similar in principle to
HADOPI in France, the Ley Sinde in Spain, the Digital Economy Act in the UK and
the six-strike law in the US. The practical reach of these laws has been
subject of much debate, however the position in New Zealand is looking good.

Impact of the three-strike law

As I have said: the stats so far look
good, with FACT alleging a 50% decrease in film download infringement, and P2P
file sharing services falling by 18%. However the number of New Zealand internet
users accessing "copyright infringing services online" was apparently
41% in February, compared to a global average of 28%. Not so great.

What's next?

Both FACT and the Recording Industry Association of New
Zealand (RIANZ) have argued that the $25 processing fee paid to ISPs should be
reduced to $2 or less. They want to be able to send more notices (or in FACT's case
to be able to send a notice, as it has yet to request one) and thus reduce
infringement further.

Predictably the ISPs don't agree: they
want to the fee to be increased to $104 to cover their processing costs. One
ISP, Telecom, has
said that it has spent $534,416 complying with the three-strike law, but that
it has only been asked to send 1238 notices.

Further, the submissions apparently
show that three of the main ISPs (Telecom, TelstraClear and Vodafone) have each
had one customer who has received three notices meaning RIANZ could have
brought each of these three users before the Copyright Tribunal. The notices
have lapsed and no action has been taken, with no comment from RIANZ.

Statistics are notoriously malleable
creatures which can be manipulated in either party's favour, so should be taken
with a pinch of salt, however the above stats do seem to indicate that the
three-strike law has had some success in New Zealand. The lobbyists want more.
It seems however that the ball is in their court: perhaps they should first use
the law to its full extent by bringing claims against infringers who have received
their three strikes, before the authorities intervene further.

In the meantime, two questions arise
which do not seem to have been addressed:

First, how do the changes in New
Zealand compare with changes in behaviour in other countries after similar laws
have been passed?

Second, have purchases of music and
films increased by 50%, or have the Kiwis found a different way of flying under
the radar?

Saturday, 21 July 2012

The Electronic Frontiers Foundation (EFF) report that it’s been a bad week for trolls in the USA, firstly with the Fifth Circuit Court of Appeals affirming a District Court order imposing sanctions on Evan Stone, the attorney for adult film producer Mick Haig Productions. Mr Stone improperly issued subpoenas without leave of the court to Internet Service Providerss seeking the identities of anonymous subscribers in a mass end-user copyright infringement case.

The EFF describes Stone’s troll like habits by using the words of the court when it said that Stone "repeat[ed] his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars - a tactic that he has employed all across the state and that has been replicated by others across the country."

District Court Judge David Godbey described as Stone's "staggering chutzpah" and said that the court had rarely seen actions a more “textbook example” deserving of sanctions: Stone issued subpoenas on his own volition without court permission, even though the Court appointed EFF and Public Citizen to brief him on the relevant legal questions and even though Stone continued to argue that he was able to proceed, all the while obtaining subscriber information from ISPs and (apparently)
sending threatening letters to subscribers directly.

In the ruling, the Court of Appeals held that Stone had waived all of his various (the EFF say "meritless") arguments such as that he could have issued a different kind of subpoena to obtain the subscriber information, that sanctions couldn't be issued under the specific Federal Rules cited by the district court, and that EFF and Public Citizen lacked standing to bring a sanctions motion. Moreover, the Court held that "no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders."

Lifting the temporary stay that it had earlier granted during the the appeal, the Court of Appeals affirmed the sanctions award ordered by the District Court. In addition to paying a $10,000 sanction to the court, the sanctions award ordered that Stone would have to serve a copy of the Order on all ISPs he had contacted and anyone else he had communicated with in connection with the proceedings; he had to file a copy of the Order in any subsequent court action where he represents a party, whether state or federal; that Stone must disclose to the court of all funds received for Mick Haig or personally resulting from his actions in the proceedings (except his own legal fees): and pay costs and fees of $22,040.

In a second case, the EFF reported that “Copyright trolls lost one of their knobby clubs” after Judge Lewis Kaplan in the U.S. District Court in Manhattan ruled that the owner of an Internet connection cannot be found liable for "negligence" simply because another person uses his wi fi connection to commit copyright infringement - even if the subscriber knows about the others illegal habits - with the EFF saying “After this decision, copyright trolls should find it harder to coerce settlement payments from innocent people for the commonplace act of sharing an Internet connection. The case is Liberty Media Holdings v. Tabora.

Friday, 20 July 2012

rance's Conseil constitutionnel (Constitutional Court) has just ruled that the Act of 20 December 2011 relating to private copying remuneration is constitutional.

Following a ruling by the Conseil d'Etat of 17 June 2011 (that itself was based on the CJEU's Padawan ruling of 21 October 2010) that faulted the existing regime for not adequately providing for a system of reimbursement for purchasers of blank media intended for professional use, the French legislator passed the Act of 20 December 2011 to (i) retroactively maintain the rates previously set by the relevant body that had been quashed by the 17 June 2011 decision and (ii) expressly provide for an exemption for blank media purchased for professional purposes.

A body representing major CE companies (who pay the private copying levy) sought (via a QPC or question prioritaire de constitutionalité) to have the Act declared unconstitutional (invoking its retroactive nature).

By today's ruling, the Conseil constitutionnel rejected the action and confirmed the Act's constitutionality.

In this, the fifth in her series of guest pieces for the 1709 Blog, Mira T. Sundara Rajantakes a close look at the treatment of moral rights in the new, much-vaunted Beijing Treaty and concludes that its moral rights provisions are somewhat limited.

The Devil is in the Footnotes:
Moral Rights in the Beijing Treaty on Audiovisual Performances

With the recent adoption of the Beijing Treaty on Audiovisual Performances, WIPO has closed a loophole in the protection of performances that was left open by its previous, landmark treaty on performers’ rights, the WIPO Performances and Phonograms Treaty of 1996 (WPPT, entered into force in 2002). In the negotiations for the WPPT, moral rights contributed to the general difficulties of achieving a viable compromise on audiovisual performances and, accordingly, the scope of the WPPT was restricted to audio, or “aural,” performances only. In this context, the WPPT established moral rights for performers for the first time in international copyright law. Its provisions are closely modeled on the moral rights provisions in Article 6bis of the Berne Convention – generally, mutatis mutandis, although the concept of “honor,” which is part of the Berne formula for the integrity right, is specifically excluded from the WPPT.

In keeping with the international trend towards broader recognition for moral rights, Article 5 of the Beijing Treaty now extends them to performers in the audiovisual context. Two interesting issues arise. First, what is the true extent of moral rights protection for audiovisual performers in this treaty–and, accordingly, what kinds of special efforts at moral rights protection, if any, will it demand of WIPO member states? Secondly, the new treaty represents the recognition of moral rights in yet another instrument of international copyright law that will require implementation in the United States. The U.S. played a crucial role in the Beijing negotiations, but it remains the one major jurisdiction without any general protection for moral rights in its copyright law (a specialized regime for the moral rights of visual artists exists at the federal level: the Visual Artists Rights Act of 1990, available here. In addition, a number of states have legislation related to moral rights). How will the U.S. movie industry and, ultimately, the U.S. government, respond?

At first glance, the text of Article 5 appears to be a new set of variations on a long familiar theme. The model of moral rights protection that it puts forward for audiovisual performances is largely derived from Article 5 of the WPPT and, through it, Article 6bis of the Berne Convention. As in both earlier versions, the Beijing agreement offers protection to the two basic moral rights of attribution and integrity. The new treaty also keeps the theory behind moral rights more or less intact. Moral rights for audiovisual performers continue to be “independent” of economic rights – and thereby, insulated from the potential consequences of alienating economic rights – and they must be protected “at least until the expiry of the economic rights.” In addition, the Beijing provision on duration follows the WPPT and Berne by including the usual caveat that, in those jurisdictions which will be introducing protection for performers’ moral rights after the death of the performer as a result of the new treaty, “some” but not “all” of these rights may cease to be protected at the time of the performer’s death. This provision was originally a way of allowing moral rights to be protected through the existing legal framework in common-law countries, including tort. It is worth noting that the continued validity of this concept in the United States, which is rapidly evolving away from the notion of “alternative” forms of protection for moral rights, may be questionable.

But, in other respects, the Beijing Treaty goes on to strike a new path. A closer look at the language framing the new moral rights shows that they are subject to numerous qualifications and limitations. In particular, the recognition of the performer’s moral right of integrity is so extensively circumscribed by the terms of the “Agreed Statement” set out in a footnote to Article 5, that the extent to which integrity is protected at all is questionable (for example, Dastar has limited the protection of moral rights through s.43(a) of the Lanham act, on false advertising: Dastar Corp. v Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), available here).

In itself, the idea of modifying moral rights to reflect the needs of a particular medium is not unusual, and it need not be philosophically troublesome. Various examples may be found in national legislation, where the protection of moral rights is modified according to the type of work concerned. The moral rights of computer programmers are limited in France (CPI (n 2), Article L121-7(1), here), while special provisions often relate to works of visual art, such as the idea that improper conditions of display could violate the artist’s moral rights, recognized in Australia (Copyright Act 1968, s. 195AK(b), here) and India (Copyright Act 1957, s. 57 Explanation, here).

The treatment of moral rights in the Beijing Treaty takes this concept to a new level. According to Beijing’s Article 5, the right of integrity must be interpreted in the light of “the nature of audiovisual fixations” and, perhaps a key point in the subsequent explanations, “their production and distribution.” The provision starts innocuously enough, providing that changes made “in the normal course of exploitation of the performance” will not violate the integrity right. In fact, a similar principle has already been articulated by the German Supreme Court in relation to the use of music for mobile ringtones, where it found that the mere conversion of music to ringtones will not amount to a violation of the creator’s moral rights (Decision of the German Bundesgerichtshof (Supreme Court) of 18 December 2008, I ZR 23/06). The precedent that the German court established is important in the technological context, because, clearly, converting music to ringtones will “necessar[ily]” involve changes, including possible technical editing and the need to create excerpts. Indeed, the very nature of a ringtone ensures that the music will be arbitrarily cut into excerpts by the user when he or she answers a call.

But the Beijing Treaty goes on to list detailed examples of what will be considered “ the normal course of exploitation”– “such as editing, compression, dubbing, or formatting”–and to include the treatment of the work “in existing or new media or formats” and any dealings with the performance “that are made in the course of a use authorized by the performer.” This seems like an incredibly comprehensive list of exclusions from the moral right of integrity. Read in conjunction with the provision that the limitations apply to virtually all media or formats, whether “existing or new,” it seems that almost anything would qualify as “a use authorized by the performer” in the audiovisual context. The identification of specific activities seems to address virtually every kind of treatment to which a performance could be subject in the audiovisual context– “editing, compression, dubbing, or formatting.” Is there any way of manipulating a performance for use in the audiovisual context that is not covered by these four words? If there were, the four activities noted here are framed as a non-exhaustive list, and any treatment of the work that could be read ejusdem generis would arguably fall within the definition of “normal... exploitation.”

The commitment to moral rights for performances in the Beijing Treaty is, at the very least, a severely restricted form of recognition for these rights. Attribution is generally allowed, although the attribution right, too, is limited in scope – the performer may forfeit his or her right to be identified “where omission is dictated by the manner of the use of the performance.” Where the right of integrity is concerned, given the range of limitations imposed by the explanatory note, it is questionable whether performers in audiovisual works can expect to assert their moral rights at all. In the final analysis, the Beijing treaty makes a nod to moral rights without, however, taking many real steps to endorse them. Accordingly, as far as the United States is concerned, it will not have to do much to honor the limited obligations undertaken at Beijing. Even a restatement of the Beijing provisions on moral rights in U.S. law would probably have little impact on U.S. copyright law or practice.

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